For the first time in several years we have some significant new entries to the social media application world in the form of Meerkat and Periscope. Both of these applications allow users to quickly and easily provide Personal Live Streaming (PLS), meaning they can start shooting video and instantly sharing it on social media. No shooting video and uploading to YouTube/Instagram/Vine, this is an ongoing live stream complete with user interaction. In all likelihood this is a function that other platforms can provide as well, especially as our handheld technology continues to grow in processing power and our wireless bandwidth continues to grow. But for now these are two significant players in an emerging space that come with some intriguing legal issues.

After experimenting with the two applications, including an hour-long live cast of my podcast (all about geek culture, if you’re interested you can check out the podcast on iTunes or our website) I put together this quick look at some of the high level legal concerns for brands and organizations who are thinking about getting involved with PLS. Is it too much to say as brands develop a Go-To-Meerkat strategy? It is? Sorry.

Because I’m a lawyer there are, of course, three main risks to be concerned about. And, oh, how convenient, they spell out YES so we can make a great blog post title. Those three concerns are YouTube+/-, Engagement, and Saved Streams. Okay, I guess technically that would spell YESS but that sounds reptilian and I’m trying to avoid that easy lawyer joke. So YES it is.

Because professional courtesy.

Also please know this is a highly dynamic area. Meerkat was first to market but Twitter had already acquired Periscope and was preparing its own launch while Meerkat was getting tons of press at SXSW. So Twitter cut off some important access to Meerkat (both apps use Twitter for crucial functions). This kind of activity may continue for others that try to create a similar service on the backbone of an existing one, and we’re sure to see completely independent services start up that tout their protection from such antics. But in a new field with this much attention we are bound to see significant moves in functionality and usage over the next several months, so stay tuned for additional posts on the subjects.

YouTube+/-

Personal Live Streaming is a video stream and so it carries most of the same legal concerns as any video content an organization would post on YouTube. But the live component of PLS makes for some interesting additions and subtractions to your standard legal analysis of video content.

On the plus side, or additional analysis you should do, you will need to consider the environment in which the stream will be recorded. Since these streams go out live you will not be able to review them for their content prior to publication. That video your marketing team did with that catchy, unlicensed Top 40 hit? Yeah, you can review that before it goes on YouTube so that Marvin Gaye’s estate doesn’t sue you for $7 million but you can’t review it before it streams. So the environment and context of the video stream should be considered for any legal threats with the team putting the stream together–you won’t get a chance to fix it later. Consider copyrights, trademarks, privacy concerns, licensing issues, and please at least briefly discuss defamation law with your on-screen talent/broadcaster.

On the minus side, or some mitigating factors that YouTube doesn’t traditionally have, these streams are not intended to be permanent. Risky activity could be mitigated by the fact that the videos are generally only visible while they are being created (except see our third part, Saved Streams, below). If someone on camera says “Top Hollywood Celebrity explicitly endorses Company Product!” during a live stream, hopefully the live and non-recorded nature of the film could mitigate any potential rights of publicity claims (or at least damages). By the way, don’t invite that streambomber to your next livestreams.

Unless it’s a dolphin. Dolphins can photobomb or streambomb all they want. It’s the law.

Engagement

Both apps provide similar ways to engage with stream watchers. Stream watchers can like a stream or send a comment to the broadcaster and those watching. Both apps also have no moderation abilities at this point–so if someone starts spamming your video broadcast with explicit text or spam there is nothing you can do.

One crucial way in how the apps differ on engagement is the comments. Meerkat comments are sent via Twitter–they are sent as Twitter replies to the original tweet announcing the Meerkat broadcast. This can be both good and bad in terms of monitoring and recording the comments and in who can see the posted comments. Periscope comments are limited to the video stream itself, also with its own benefits and drawbacks. One consideration organizations should make when using PLS is whether they will have an individual conduct the streams or a small team. The single user and video shooter can be very effective and personal, but it can also be difficult to engage an audience based on personal content (a speech, a demonstration, etc.). Having one person operating the camera (well, phone/tablet camera) while another is being filmed will help to monitor video issues and comments, or you may even want to separate the duties between people to operate the camera and another to watch the comments. There’s no right answer, it’s just something to think through.

Unless you have one of these. Because now you have extra fingers to use and you are awesome.

Saved Streams

PLS is mostly about current video but both apps have some replay abilities that may bring legal risks or make you consider which application your organization may conduct its own experiments. Meerkat streams are public and they had to issue a quick fix recently to prevent anyone from hijacking another user’s stream. That security issue aside, Meerkat faces another legal risk in terms of recorded sessions. Meerkat gives broadcasters the option to save the video to their phone/tablet at the end of the session but there is already a service that will allow any user participating in a Meerkat stream to send out a single hashtag that will record the stream and then post it to YouTube.

The idea that some third party can record and post your stream even if you yourself do not feels quite risky depending on the content that is being sent out. In many ways this is no different than a user sending a photo on Snapchat that will be deleted but the recipient uses their phone’s operating system to take a screen capture of the image. But if your organization doesn’t use Snapchat to send out photos then that may not be an analysis you’ve done. So it’s something to consider.

Pictured: extensive legal analysis.

Periscope, on the other hand, does not currently have a way for third parties to easily record your stream and post it (although there could certainly be a way to record video sent to watcher’s phones/tablets/computers). The app will, however, allow you to upload the video to Periscope’s servers and allow other users to watch or re-watch the stream for a period after it was filmed. That at least gives the broadcaster some control over how long the video will live but is also something that should be considered.

It’s exciting to see a new function and communities spring up in the social universe. We haven’t had a significant new step like this since Pinterest many years ago. Whether this remains a thriving independent community or more of a feature that everyone will enable (like checking in from a few years ago) remains to be seen.

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.